No “in‑between” categories: Joint offending plus severe psychological harm mandates Category 1A for sexual assault; abuse-of-trust requires significant responsibility (Singh & Anor [2025] EWCA Crim 1409)

Introduction

In Singh & Anor, R. v [2025] EWCA Crim 1409, the England and Wales Court of Appeal (Criminal Division) considered a reference by His Majesty’s Solicitor General under section 36 of the Criminal Justice Act 1988, contending that sentences imposed for sexual assaults on a child were unduly lenient. The case concerns two delivery workers, Sadnam Singh (29) and Navjot Singh (28), who were convicted by a jury of two counts each of sexual assault contrary to section 3 of the Sexual Offences Act 2003. The assaults occurred within the victim’s own home—specifically in her bedroom—when she was 14 years old and alone. The victim has life-long anonymity under the Sexual Offences (Amendment) Act 1992.

The appeal raised two principal issues. First, the correct categorisation under the Sexual Assault definitive guideline where (a) two offenders act together, and (b) the victim has suffered severe psychological harm. Secondly, a procedural and constitutional point now adjourned for further argument: whether the Court should entertain an unduly lenient sentence (ULS) reference where one respondent has been voluntarily deported and, as a practical matter, will not serve any increased sentence.

The Court adjourned the reference in relation to Sadnam Singh (due to his deportation), but proceeded with the reference regarding Navjot Singh, ultimately granting leave, finding the original sentence unduly lenient, and substituting a term of 48 months’ imprisonment on the lead count.

Summary of the Judgment

Deportation issue (Sadnam Singh): The Court adjourned to consider, with the benefit of written submissions, whether and when it is appropriate to proceed with a ULS reference where the respondent has been removed from the jurisdiction and will not, in practice, serve any additional time. The Court referenced R v Bilalaj [2023] EWCA Crim 254 but signalled that the point merits fuller consideration.
Guidelines categorisation: The Court held that the offending is unequivocally Category 1A under the Sexual Assault guideline: harm category 1 (severe psychological harm) and culpability A (offenders acting together). This was “not in any sense in any other category.”
Abuse of trust: The “abuse of trust” factor under culpability A was not engaged. Delivery personnel do not, without more, hold the significant responsibility to the victim required by the guideline.
Starting point and aggravation: The judge erred by effectively adopting a three-year starting point rather than the Category 1A starting point of four years. The serious aggravating factors (child alone, in own home, in own bedroom) were not properly reflected in the sentence.
Outcome for Navjot Singh: The Court granted leave, found the sentence unduly lenient, and increased the sentence on the lead count to 48 months, with concurrency maintained on the other count and all consequential orders unchanged.

Factual Background

On 7 February 2024, the 14-year-old victim was at home alone awaiting the delivery of a TV stand. The respondents brought the package into the house, followed her upstairs, and entered her bedroom. There, the assaults took place. The Court accepted evidence of severe psychological impact: the victim’s collapse immediately after the offenders left; sustained distress; self-harm urges; an inability to return to her bedroom until it was refurnished; marked withdrawal; and significant disruption to her education, with grades falling and poor school attendance.

The Key Legal Issue: Correct Guideline Categorisation

The sentencing judge, though alive to the need to apply the guideline “with care,” effectively treated the offending as something that could be positioned between categories—particularly between Category 1A (SP 4 years) and Category 1B (SP 2 years 6 months)—and proceeded from a three-year starting point before giving limited mitigation to reach 30 months. The Court of Appeal rejected this approach emphatically.

Precedents Cited and Their Influence

R v Bilalaj [2023] EWCA Crim 254

Bilalaj was cited in relation to whether the Court should proceed with a ULS reference when the respondent has been voluntarily deported. In Bilalaj, the Court proceeded, noting representation by counsel. Here, the Court acknowledged the lack of further authority and expressed reservations about entertaining an application where a respondent has been removed and “is not going to serve any more time as a matter of practical reality,” particularly where counsel cannot obtain ongoing instructions. The Court thus adjourned for two hours’ listed argument at a later date with skeleton arguments. This signals a potential re-examination—and possible recalibration—of the practice suggested by Bilalaj.

General ULS Principles (Section 36, Criminal Justice Act 1988)

The Court reiterated the orthodox principles for ULS references:

Great deference to the trial judge, who is well placed to evaluate competing considerations.
A sentence is “unduly lenient” only if it falls outside the range of sentences reasonably open to the judge; borderline cases should not be referred.
Section 36 is concerned with gross error; even where unduly lenient, the Court retains a discretion whether to increase the sentence.

These principles framed the Court’s analysis of whether the judge’s miscategorisation and failure to reflect aggravating features took the case outside the permissible range. They did.

Legal Reasoning

1) Abuse of trust is a discrete, threshold factor—not a sliding scale

The Court accepted that “abuse of trust” (a culpability A factor) was not made out on these facts. The guideline’s drop-down explanation requires a “significant level of responsibility towards the victim on which the victim was entitled to rely.” Opportunistic offending by delivery personnel does not satisfy that criterion. The Court notably rebuffed the notion of “near abuse of trust” as a formal stepping-stone within the guideline. Either the threshold is met or it is not.

2) Acting together activates culpability A

Despite the absence of abuse of trust, culpability A was engaged because the respondents “acted together” in the offence. The guideline expressly lists joint offending as a culpability A feature. The presence of two men acting together against a 14-year-old was determinative on this limb.

3) Severe psychological harm puts the case in harm category 1

The Court confirmed that severe psychological harm—beyond the inherent harm of sexual assault—was established on the evidence. That placed the case in harm category 1. The judge’s own description of the consequences as “catastrophic” was consistent with this finding.

4) No “straddling” between categories; use the correct starting point

With culpability A and harm category 1 established, the case was squarely Category 1A. The starting point is therefore 4 years, with a range of 3–7 years. The Court rejected the suggestion that cases “straddle” categories (an analogy sometimes seen in drug-supply role assessments). The guideline sequence must be respected:

Step 1: identify the correct category (here, 1A) and apply its starting point;
Step 2: adjust within the category range for aggravating and mitigating factors, to reach a provisional sentence;
Step 3: consider personal mitigation, totality, and any further statutory adjustments.

By adopting a three-year starting point (as if Category 1B or even 2A), the judge’s approach distorted the analysis and failed to account properly for aggravation.

5) Aggravating features not properly reflected

The Court highlighted serious aggravating features:

The victim’s young age (14);
Her being alone in the house;
The location: her own home, and specifically her own bedroom.

These factors are distinct from (and in addition to) the harm criterion. The Court considered they would “add at least a year” in uplift, before mitigation. Yet the judge’s methodology meant they were not appropriately captured in the eventual sentence.

6) Mitigation and outcome

The Court recognised the mitigating factors—previous good character, employment, and family responsibilities—and indicated that, balancing aggravation and mitigation from the correct 4-year starting point, the appropriate sentence for Navjot Singh was 4 years’ imprisonment on the lead count, with concurrency on the other count and all consequential orders preserved.

Impact and Significance

A. Sentencing practice: clarity and discipline in guideline application

Clear rule reaffirmed: where harm category 1 (severe psychological harm) and culpability A (acting together) are both present, the offence is Category 1A. The 4-year starting point must be used.
Judges should not “blend” categories to adopt intermediate starting points. Adjustments should occur at Step 2 (aggravation/mitigation) and Step 3 (personal mitigation/totality), not by re-labelling the category.
“Abuse of trust” is confined to situations meeting the guideline’s threshold of significant responsibility owed to the victim. Delivery and similar opportunistic contexts will not ordinarily qualify, though they may carry substantial aggravation depending on the circumstances.
Aggravating features such as the victim’s age, being alone, and the sanctity of the home/bedroom must be expressly factored into the uplift from the correct starting point.

B. Practical consequences in child and residential context sexual assaults

Professionals and workers entering homes (e.g., delivery personnel, tradespeople) who commit sexual assaults can expect categorisation at 1A where two act together and the victim’s psychological harm is severe—irrespective of whether formal “abuse of trust” is engaged.
Severe psychological harm supported by credible evidence (e.g., self-harm ideation, educational detriment, sustained avoidance behaviours) will drive harm category 1. Sentencers must differentiate this from the harm inherent to the offence.

C. ULS references and deportation: likely future guidance

Although undecided here, the Court has flagged an important systemic question: should the Court entertain ULS references where an offender has been removed from the jurisdiction and will not, in practical terms, serve any additional sentence? The Court has asked for focused argument on:

The utility and propriety of increasing a sentence that cannot be served;
Fairness concerns where counsel cannot obtain instructions from a deported respondent;
The balance between the public interest in correcting undue leniency and the risk of moot or academic determinations;
Inter-branch considerations where one arm of government seeks an increase while another has removed the offender.

Depending on the eventual ruling, we may see clearer criteria for when the Court will (or will not) proceed with a ULS reference post-deportation, potentially refining or qualifying the approach suggested by Bilalaj.

Complex Concepts Simplified

Unduly lenient sentence (ULS) reference: A mechanism under section 36 of the Criminal Justice Act 1988 allowing the Law Officers to ask the Court of Appeal to review certain sentences thought to be too low. The Court only intervenes if the sentence falls outside the reasonable range.
Sexual assault guideline categories: The Sentencing Council guideline classifies offences by “culpability” (A–C) and “harm” (1–3). Category 1A is the most serious combination when present: high culpability (A) and highest harm (1).
Culpability A – acting together: High culpability is engaged if offenders act with others to commit the offence, reflecting increased seriousness and intimidation.
Abuse of trust: A specific culpability factor requiring a significant responsibility owed to the victim on which the victim is entitled to rely (e.g., teacher, carer). Opportunistic access by workers in homes usually does not qualify unless a qualifying responsibility exists.
Harm category 1 – severe psychological harm: Goes beyond harm inherent in the offence; established by evidence of profound, lasting psychological impact.
Starting point vs. range: The starting point is a benchmark sentence for the category; the range is the permissible band within which aggravating and mitigating factors move the sentence up or down.
Aggravating vs. mitigating factors: Aggravating factors increase seriousness (e.g., child victim alone at home); mitigating factors reduce it (e.g., previous good character, family responsibilities).
Concurrent sentences: When multiple counts are sentenced concurrently, the longest controls the actual term; other counts run at the same time rather than being added on top.
Deportation and ULS references: An emerging issue—if a respondent is deported and cannot serve an increased sentence, should the Court review the sentence at all? The Court has invited argument and will give guidance in due course.

Conclusion

Singh & Anor delivers a clear and authoritative message on applying the Sexual Assault guideline: when two offenders act together and the victim suffers severe psychological harm, the case is Category 1A—full stop. Sentencers should not attempt to “straddle” categories to accommodate perceived nuances. The correct approach is to start at the mandated starting point (here, four years) and then adjust for aggravation and mitigation. The Court also reaffirms that “abuse of trust” is a narrowly defined threshold; opportunistic access by delivery personnel does not meet it absent a significant responsibility to the victim.

On the procedural front, the Court has set the stage for potentially important guidance on whether it is appropriate to entertain ULS references after a respondent’s deportation. That forthcoming analysis will need to reconcile fairness, practicality, and the public interest in correcting sentencing error. For now, the immediate precedential effect is a reinforced, disciplined application of the Sentencing Council’s framework, with Category 1A firmly engaged in joint offending causing severe psychological harm to a child in the supposed safety of her own home.